Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] A jury convicted Vincent James Scott of first degree sexual assault, aggravated assault and child abuse. He appeals, claiming the district court denied his Sixth Amendment right to represent himself at trial and imposed an illegal sentence. We affirm.
[¶2] Mr. Scott states the issues for our consideration as follows:
I. Did the trial court arbitrarily deny Vincent Scott his constitutional right to represent himself during the criminal proceedings against him?
II. By running misdemeanor sentences concurrent with consecutive felony sentences, did the trial court create an impossible sentencing arrangement which is therefore illegal?
The State rephrases the issues as:
I. Should Scott be denied the opportunity to represent himself at trial?
II. Did the district court impose an illegal sentence when it ordered Scott to serve three misdemeanor terms concurrently with three consecutive felony terms of incarceration?
[¶3] On November 8, 2009, the Sheridan Police Department responded to a report of domestic violence at a residence in Sheridan, Wyoming. They found Mr. Scott's ex-wife, CS, and child at the residence. CS reported that Mr. Scott had beaten her, held a knife to her throat and forced her to have sex with him. The child tried to intervene and Mr. Scott pushed him down some stairs. At the time, there was a protection order in place prohibiting Mr. Scott from having contact with CS. During the assault, CS was able to call 911 but Mr. Scott interrupted the call by taking the phone away from her.
[¶4] Mr. Scott was charged with three felonies: first degree sexual assault under Wyo. Stat. Ann § 6-2-302(a)(ii) (LexisNexis 2011), aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2009) and child abuse under Wyo. Stat. Ann. § 6-2-503(b)(i) (LexisNexis 2011). He was also charged with three misdemeanors: domestic battery pursuant to § 6-2-501(b) (LexisNexis 2011), interference with a 911 call in violation of Wyo. Stat. Ann. § 6-5-212(a) (LexisNexis 2011) and violation of a protection order under Wyo. Stat. Ann. § 6-4-404(a) (LexisNexis 2011). A public defender was appointed to represent Mr. Scott and his case was set for trial. One week before the trial was to begin, defense counsel moved to suspend the proceedings and for an order directing Mr. Scott to submit to a competency evaluation at the state hospital. The district court granted the motion. Upon completion of the evaluation and a determination that Mr. Scott was competent to proceed, the district court set a new trial date.
[¶5] One week before the second trial date, Mr. Scott's appointed counsel moved to withdraw on the ground that she was no longer a contract attorney for the State of Wyoming Public Defender. Another attorney with the public defender's office filed an entry of appearance on Mr. Scott's behalf and moved for a continuance of the trial date. The district court denied the motions to withdraw and for continuance and re-appointed the original attorney as a private attorney to represent Mr. Scott. In its order, the district court noted that the trial had already been postponed once to allow Mr. Scott to undergo a competency evaluation, the second trial date was only five days away, Mr. Scott had not waived his right to a speedy trial, the attorney originally appointed to represent him was qualified and competent, and requiring her to continue her representation would provide consistency, prevent the need for a continuance and avoid resulting prejudice to Mr. Scott.
[¶6] Three days later, and a day and a half before trial, the court convened a status hearing. At that time, defense counsel informed the district court that Mr. Scott wished to waive his right to counsel and represent himself at trial. After inquiring of Mr. Scott whether he knew how to conduct a jury trial, the district court denied his request, finding that his attempt to waive his right to an attorney was not the result of a knowing and intelligent decision. The case proceeded to trial with Mr. Scott represented by counsel.
[¶7] Following a two day trial, and after deliberating for three hours, the jury found Mr. Scott guilty on all charges. The district court sentenced him to 35 to 50 years on the sexual assault conviction, eight to ten years for aggravated assault and four to five years for child abuse. The court ordered the felony sentences to be served consecutively. The district court imposed sentences of six months on each misdemeanor charge and ordered them to be served concurrently with the felony sentences.
[¶8] Like the right to counsel, the right of self representation is protected by the Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Ash v. State, 555 P.2d 221, 224 (Wyo. 1976). Claims that a constitutional right has been violated involve questions of law which we review de novo. Rodriguez v. State, 2010 WY 61, ¶ 6, 230 P.3d 1111, 1113 (Wyo. 2010). Claims that a district court imposed an illegal sentence also involve questions of law subject to de novo review. Center v. State, 2011 WY 73, ¶ 6, 252 P.3d 963, 966 (Wyo. 2011).
1. Sixth Amendment Right to Self Representation
[¶9] In his first issue, Mr. Scott asserts the district court denied his Sixth Amendment right to represent himself at trial. He contends the district court is charged only with providing a defendant with sufficient information so that he understands the consequences of proceeding pro se. He asserts the district court committed reversible error when it forced him against his will to be represented by appointed counsel after he acknowledged that if he elected to proceed without counsel, he would be responsible for conducting the trial. The State responds that the district court properly denied Mr. Scott's request to represent himself at trial because the request was untimely and he did not knowingly and intelligently waive his right to counsel.
[¶10] A defendant has a clear right to choose to defend himself. Miller v. State, 560 P.2d 739, 741 (Wyo. 1977), citing Faretta, 422 U.S. 806, 95 S. Ct. 2525. The right to self representation, unlike other constitutional guarantees, has as its primary purpose the defendant's freedom of choice, even though such a choice may operate to his detriment. Burdine v. State, 974 P.2d 927, 931 (Wyo. 1999), citing Williams v. State, 655 P.2d 273, 274 (Wyo. 1982). Reversible error may occur if a trial court attempts to force an attorney on an unwilling defendant. Ash, 555 P.2d at 224; Osborn v. State, 672 P.2d 777, 797 (Wyo. 1983).
[¶11] A defendant who chooses to proceed pro se, however, must act knowingly and intelligently in giving up the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; Large v. State, 2011 WY 159, ¶ 32, 265 P.3d 243, 251 (Wyo. 2011). Before allowing a defendant to proceed without counsel, the court must make him aware of the disadvantages and dangers of self-representation. Id. "Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se." Id., quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991). "[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation." Id., quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. However, for a defendant's decision to proceed pro se to be valid, the trial judge must ensure that the waiver of counsel is "an intentional relinquishment or abandonment of a known right or privilege." Van Riper v. State, 882 P.2d 230, 234 (Wyo. 1994), quoting Willie, 941 F.2d at 1388. In deciding whether the right to counsel has been waived, we indulge every reasonable presumption against waiver. Rodriguez, ¶ 10, 230 P.3d at 1113. We review the record as a whole to determine if the right to counsel has been voluntarily, knowingly, and intelligently waived. Id.
[¶12] In the present case, after defense counsel informed the district court at the pretrial status hearing that Mr. Scott wanted to represent himself ...